Food for Thought

From a book review:

The first freedom of the First Amendment reads like this: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Those 16 words were subject to only modest debate or litigation until the 1947 Everson decision when Justice Hugo Black, writing for the Court majority, held that they mean that "Neither a state nor the Federal Government ... can pass laws which aid one religion, aid all religions, or prefer one religion to another." This came as a great surprise to students of American history. In his magisterial 2004 study, "Separation of Church and State," Columbia law professor Philip Hamburger underscored the ways in which Black's long-standing animus toward Catholicism led him to turn the Religion Clause on its head. "Liberty of Conscience" is a determined defense of Black's stratagem.

In discussions of the Religion Clause, it is common practice to speak of an Establishment Clause and a Free Exercise Clause. In fact, both grammatically and in intent, there is one clause with two provisions — no establishment and free exercise. The first provision is in the service of the second: The reason the government must not establish a religion is that having an established religion would prejudice free exercise by those who do not belong to it. As numerous scholars have pointed out, however, the end of the Religion Clause, i.e., free exercise, has been subordinated since Everson to the means, i.e., no establishment. The result is that "the separation of church and state" (a phrase of Jefferson's that is not in the Constitution) has come to mean that wherever government advances, religion must retreat.

There is a school of constitutional law that holds that the entire fuss over the Religion Clause is misbegotten. The Founders intended nothing more, in this view, than to assure the states that the federal government would not interfere with the several state establishments of religion that existed at the time. The last state establishment (Massachusetts) was dismantled in 1833, so that's that, and the Religion Clause is no more than a historical artifact. This view is charmingly straightforward, but Ms. Nussbaum does not address it, and just as well, for, like it or not, the Religion Clause has, since Everson, been deeply and confusedly entangled in our law and politics.

The review may be more worth your while than the book itself, Martha Nussbaum's "Liberty of Conscience":

In contrast to "originalists," such as Justices Alito and Scalia, Ms. Nussbaum is an unapologetic defender of "the living Constitution." And, if you want to know what we now know about history, human behavior, and plausible accounts, you have only to ask Martha Nussbaum. There is an insouciant tone of being above partisanship in her distinctly partisan answers to all the aforementioned questions in the dispute. Her apodictic style aside, however, she has read broadly and imaginatively, with the result that there are more than occasional ideas of genuine interest.

More the pity, then, that for all her stressing the need for civility and mutual respect, she caricatures the views of those with whom she disagrees in a most unseemly manner. Again and again, they are described as acting out of fear, insecurity, ignorance, a theocratic desire to undo the Constitution, or all of these in combination. The chief villain, of course, is the hated "religious right." America is "under assault" and "facing a huge threat." "An organized, highly funded, and widespread political movement wants the values of a particular brand of conservative Christianity to define the United States." She ominously observes that "the current threat is not, or not yet, violent." Did someone mention fear and insecurity?

And then there's this, which is bound to raise blood-pressures, from the trouble-making Heather Mac Donald:

The campus rape industry’s central tenet is that one-quarter of all college girls will be raped or be the targets of attempted rape by the end of their college years (completed rapes outnumbering attempted rapes by a ratio of about three to two). The girls’ assailants are not terrifying strangers grabbing them in dark alleys but the guys sitting next to them in class or at the cafeteria.

This claim, first published in Ms. magazine in 1987, took the universities by storm. By the early 1990s, campus rape centers and 24-hour hotlines were opening across the country, aided by tens of millions of dollars of federal funding. Victimhood rituals sprang up: first the Take Back the Night rallies, in which alleged rape victims reveal their stories to gathered crowds of candle-holding supporters; then the Clothesline Project, in which T-shirts made by self-proclaimed rape survivors are strung on campus, while recorded sounds of gongs and drums mark minute-by-minute casualties of the “rape culture.” A special rhetoric emerged: victims’ family and friends were “co-survivors”; “survivors” existed in a larger “community of survivors.”

An army of salesmen took to the road, selling advice to administrators on how to structure sexual-assault procedures, and lecturing freshmen on the “undetected rapists” in their midst. Rape bureaucrats exchanged notes at such gatherings as the Inter Ivy Sexual Assault Conferences and the New England College Sexual Assault Network. Organizations like One in Four and Men Can Stop Rape tried to persuade college boys to redefine their masculinity away from the “rape culture.” The college rape infrastructure shows no signs of a slowdown. In 2006, for example, Yale created a new Sexual Harassment and Assault Resources and Education Center, despite numerous resources for rape victims already on campus.